DEFENSE DISTRIBUTION REGION WEST DEFENSE DISTRIBUTION DEPOT BARSTOW, BARSTOW, CALIFORNIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO

DEFENSE DISTRIBUTION REGION
WEST

DEFENSE DISTRIBUTION DEPOT BARSTOW,
BARSTOW, CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1482, AFL-CIO

Charging
Party

Case Nos. SA-CA-20491

SA-CA-20522

NOTICE OF TRANSMITTAL OF
DECISION

The above-entitled case having been
heard before the undersigned Administrative Law Judge pursuant to
the Statute and the Rules and Regulations of the Authority, the
under-signed herein serves his Decision, a copy of which is
attached hereto, on all parties to the proceeding on this date and
this case is hereby transferred to the Federal Labor Relations
Authority pursuant to 5 C.F.R. § 2423.26(b).

PLEASE BE ADVISED that the filing of
exceptions to the attached Decision is governed by 5 C.F.R. §§
2423.26(c) through 2423.29, 2429.21 through 2429.25 and
2429.27.

Any such exceptions must be filed on
or beforeMAY 30, 1995, and addressed to:

Federal Labor Relations
Authority

Office of Case Control

607 14th Street, NW, 4th
Floor

Washington, DC
20424-0001

ELI NASH, JR.

Administrative Law Judge

Dated: April 28, 1995

Washington, DC

MEMORANDUM DATE: April 28,
1995

TO: The Federal Labor Relations
Authority

FROM: ELI NASH, JR.

Administrative Law Judge

SUBJECT: DEFENSE DISTRIBUTION REGION
WEST

DEFENSE DISTRIBUTION
DEPOT

BARSTOW, BARSTOW,
CALIFORNIA

Respondent

and Case Nos.
SA-CA-20491

SA-CA-20522

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1482,
AFL-CIO

Charging Party

Pursuant to section 2423.26(b) of
the Rules and Regulations, 5 C.F.R. § 2423.26(b), I am hereby
transferring the above case to the Authority. Enclosed are copies
of my Decision, the service sheet, and the transmittal form sent to
the parties. Also enclosed are the transcript, exhibits and any
briefs filed by the parties.

Enclosures

UNITED
STATES OF AMERICA

FEDERAL LABOR RELATIONS
AUTHORITY

OFFICE OF ADMINISTRATIVE LAW
JUDGES

WASHINGTON, D.C.
20424-0001

DEFENSE DISTRIBUTION REGION
WEST

DEFENSE DISTRIBUTION
DEPOT

BARSTOW, BARSTOW,
CALIFORNIA

Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT

EMPLOYEES, LOCAL 1482, AFL-CIO

Charging
Party

Case Nos. SA-CA-20491

SA-CA-20522

R. Timothy Shiels, Esq.

For the General Counsel

Susan J. Pixler, Esq.

For the Respondent

Dale E. Boyce, President

For the Charging Party

Before: ELI NASH, JR.

Administrative Law
Judge

DECISION

Statement of the Case

This case arose under the Federal
Service Labor-Management Relations Statute, Chapter 71 of Title 5
of the United States Code, 5 U.S.C. § 7101,etseq.(herein the Statute).

Pursuant to an unfair labor practice
charge filed by the captioned Charging Party (herein the Union)
against the captioned Respondent, the General Counsel of the
Federal Labor Relations Authority, by the Regional Director for the
San Francisco Regional Office, issued a Complaint and Notice of
Hearing, as amended at the hearing, alleging that the Respondent
violated section 7116(a)(1) and (5) of the Statute by unilaterally
eliminating the compressed work schedule/ alternate work schedule
for unit employees in five of its divisions without bargaining with
the Union over the substance or the impact and implementation of
the changes. Respondent filed an answer denying that it had
violated the Statute as alleged, and raising certain affirmative
defenses.

A hearing in this matter was
conducted before the under-signed in Barstow, California.
Respondent and the General Counsel of the Authority were
represented and afforded a full opportunity to be heard, to examine
and cross examine witnesses, to introduce evidence and to argue
orally. Briefs were filed by the Respondent and the General
Counsel and have been carefully considered.

Based upon the entire record in this
matter, my observation of the witnesses and their demeanor, and my
evaluation of the evidence, I make the following:

Findings of Fact

A.Bargaining at Marine Corps Logistics Base, Barstow

Prior to March 16, 1992, the
employees located at the Marine Corps Logistics Base, Barstow,
California (MCLBB), were part of a nationwide bargaining unit of
Marine Corps employees exclusively represented by the American
Federation of Government Employees, AFL-CIO (AFGE). AFGE Local
1482, the Charging Party herein, was the authorized agent of AFGE
to represent the employees located at MCLBB. In that capacity, and
as authorized by the Master Labor Agreement (MLA) between AFGE and
the U.S. Marine Corps, AFGE Local 1482 negotiated a local
supplemental agreement (LSA) with MCLBB which became effective
January 22, 1991. The LSA provided, in part, as
follows:

Article 41: Compressed Work
Schedule/Alternate

Work Schedule

Section 1.
The Base will implement a work schedule of the 5/4/9 Plan. The
Division Director will designate which work areas will implement or
be excluded from the 5/4/9 Plan. In determining the basic work
requirement for the 80 hour work period, the Division Director has
the discretion to deter-mine the scheduled day off, Mondays or
Fridays, to include alternating the work force on days off to
provide work coverage for mission accomplishment.

Section 2.
The basic work requirement of the 5/4/9 Plan will consist of 8 days
at 9 hours and 1 day of 8 hours for the 80 hour pay period.
Management will consider scheduling the first Monday or second
Friday of the pay period as the scheduled day off. Employees will
be notified in advance of their basic work requirement (the number
of hours and days of work).

* * * * * *
* *

Section 4.
If a shop or individual employee desires reconsideration of the
Division Director's decision, the request will be submitted to the
Division Director in accordance with Article 13, Section 8d(1) of
the MLA.

* * * * * *
* *

Section 8.
If during the life of this LSA, this alternate compressed work
schedule is determined to adversely affect finances or impair
mission accomplishments, the base will notify the union in advance
of their intent to effect a change in accordance with Article 4,
Section 1 of the MLA.

Article 4, Section 1 of the MLA,
referred to in Article 41, Section 8 of the LSA quoted above,
states as follows:

Article 4: Bargaining During the
Term of the Agreement

Section 1
The employer will notify the council of policy changes originating
above the activity level that give rise to a bargaining obligation
under the Statute. Where such changes originate at the activity
level, the activity will notify the appropriate local
union.

B. Creation
of Defense Distribution Depot, Barstow at MCLBB

On March 16, 1992, as part of an
ongoing realignment in the Department of Defense, the Defense
Distribution Depot, Barstow--Respondent herein--was created as a
separate activity within the Defense Logistics Agency (DLA) located
at the MCLBB.631750320
As a result of the realignment, approximately half
(i.e., 220) of the
employees in the MCLBB unit represented by the Union were
transferred to the Respondent and became part of the nationwide DLA
bargaining unit. Accordingly, they became covered by the Master
Agreement between DLA and AFGE but also remained covered by the LSA
negotiated between MCLBB and the Union in January 1991 (see
n.1).1605993136 More particularly, the transferred employees remained subject
to the provisions of Article 41 in the LSA pertaining to Alternate
Work Schedules (AWS).

C. Respondent Unilaterally Cancels
AWS forUnit Employees

The parties stipulated, and the
record shows, that between May 17 and June 1, 1992, the Respondent
changed conditions of employment for unit employees by removing the
employees in the Inventory Division, Systems and Procedures
Section, Warehouse Division, Packaging and Shipping Division, and
Product and Evaluation Division from their compressed work
schedule/alternate work schedule. Specifically, the Respondent
notified the Union in writing that all employees in the above-named
divisions and sections would work an eight-hour shift, Monday
through Friday, rather than continue on the 5/4/9 Plan then in
effect.

Although the Union immediately
requested bargaining with respect to the Respondent's decision to
change the employees' work schedules, the Respondent notified the
Union by letter dated June 1, 1992, that it refused to negotiate
inasmuch as its actions were consistent with the terms of the LSA.
More specifically, the Respondent relied upon (1) the LSA between
the Union and the MCLBB that AWS may be terminated upon appropriate
notice to the Union when the AWS schedule impairs mission
accomplishments, a situation which the Respondent believed to be
applicable to the employees in question; (2) MCLBB's similar
position under the LSA, which was then

the subject of an arbitration case
initiated by the Union; and (3) the sufficiency of its notice to
the Union that AWS would be terminated for the affected employees.
Respondent also stated that the Union could file a grievance if it
wished to challenge management's decision to terminate AWS.
Instead, the Union filed an unfair labor practice charge against
the Respondent which led to the instant proceeding.

D.Events
Occurring After the Respondent's Unilateral Termination of AWS for
Unit Employees

On August 16, 1992, the arbitration
proceeding referred to in the Respondent's June 1 letter was
decided. In his award interpreting the identical contract
provisions involved in this case, the arbitrator concluded (in
agreement with the Union) that Article 41, Section 8 of the LSA
requires notificationand bargaining(in accordance with Article 4, Section 1 of the
MLA) when management determines that AWS is "adversely affect[ing]
finances or impair[ing] mission accomplishments" and therefore
intends to effectuate a change in AWS. In so concluding, the
arbitrator rejected MCLBB's contention that Article 41, Section 8
of the LSA is applicable and requires bargaining only when AWS is
eliminated Base-wide rather than for certain groups of
employees.1230601342 The arbitrator further rejected the contention that each
Division Director's discretion under Article 41, Section 1 of the
LSA to decide whether toinitiateAWS for that Division's employees is applicable to
situations where the issue is whether toterminateAWS for employees after the
Division Director's discretion to implement AWS for them has been
exercised. Finally, the arbitrator concluded that Article 41,
Section 4 of the LSA--which allows employees to grieve their
Division Director's decision to exclude them from AWS--is not
inconsistent with requiring the employer to negotiate when it
determines that AWS adversely affects finances or impairs mission
accomplishments and therefore should be
discontinued.149566710

When the Union brought the
arbitrator's award to the attention of Ronald Pinson, the
Respondent's Deputy Director, and demanded a return to the AWS
program, Pinson refused to do so. According to Pinson, he
telephoned DDRW Headquarters for guidance and was told that the
agency was negotiating with all of the AFGE locals and would reach
a separate supplemental agreement rather than be covered by the LSA
between the Union and MCLBB.702731500

Discussion and Legal Conclusions

A.Threshold
Issues

As stated above, the complaint
alleges that the Respondent violated section 7116(a)(1) and (5) of
the Statute by cancelling the alternate work schedule (AWS) Plan
for unit employees in the Inventory Division, the Systems and
Procedures Section, the Warehouse Division, the Packing and
Shipping Division, and the Product and Evaluation Division, without
negotiating with the Union concerning the decision to do so. In
its answer, the Respondent denied violating the duty to bargain in
good faith, specifically relying on Article 41, Sections 1 and 8 of
the Local Supplemental Agreement (LSA) between the Union and MCLBB
as justification for its unilateral action. More specifically, the
Respondent asserted that the LSA clearly authorized management to
discontinue AWS for unit employees simply by notifying the Union of
its intentions in advance, and that it had no obligation to
negotiate mid-term concerning matters clearly covered by the
LSA.

At the hearing in this case, the
General Counsel and the Respondent agreed that the unfair labor
practice allegation should be resolved on the basis of how the LSA
is properly interpreted: if the LSA permitted the Respondent to
cancel AWS after notifying the Union that it deemed AWS to
adversely affect finances or impair mission accomplishments, then
the complaint should be dismissed; however, if the LSA's reference
in Article 41, Section 8 to Article 4, Section 1 of the MLA
required the Respondent not only to notify the Union of the
foregoing but also to negotiate concerning the intended change in
conditions of employment, then the Respondent's unilateral
termination of AWS for unit employees constituted an unfair labor
practice as alleged in the complaint.

In its post-hearing brief, the
Respondent contended for the first time that the LSA's provisions
should not govern the disposition of this case because, under
Article 20, Section 5 of DLA's Master Agreement with
AFGE1359495706and Memorandum of Understanding 90-2 (dated June 20, 1990)
between the same parties,1877844821the LSA "ceased to exist" before the Respondent cancelled AWS
for unit employees. More specifically, the Respondent asserted
that when it notified the Union in mid-May 1992 that AWS would be
discontinued for unit employees as of June 1, 1992, MOU 90-2 had
been in effect for almost two years; that under MOU 90-2, local
supplements such as the LSA which were applicable to employees
prior to their transfer into DDRW would remain in effect for a
maximum of 18 months; and that the parties would be considered at
impasse if no supplemental agreement were negotiated between them
within 18 months after the signing of MOU 90-2. Accordingly, the
Respondent contends that it had the right to unilaterally change
conditions of employment contained in the LSA on which the parties
were at impasse where--as here--the Union has not sought the
assistance of the Federal Service Impasses Panel after receiving
notice of the impending change.

I reject this ingenious argument for
several reasons. First, at all times material to this case, the
Respondent acted--and sought to justify its actions--under the
specific terms of the LSA. It neither bargained with the Union
concerning the termination of AWS for unit employees nor notified
the Union that the parties were at impasse over the issue. Indeed,
the Respondent asserted that it could act unilaterally because the
LSA negotiated between the Union and MCLBB in January 1991 gave it
the right to do so if it determined that AWS was adversely
affecting finances or impairing mission accomplishments. Under
these circumstances, it is understandable that the Union would have
no basis for believing that an impasse existed and that it should
seek the Panel's assistance. Second, if the Respondent wished to
rely upon additional contractual provisions--after the hearing
closed--to justify its unilateral action, the appropriate method
for doing so would have been a motion to reopen the record in order
to introduce evidence concerning the proper meaning and application
of those provisions.913079381
This approach would have afforded the General Counsel an
opportunity to challenge the meaning or applicability of those
additional contractual provisions at the
hearing.1088329167 Finally, in the absence of evidence that the parties intended
MOU 90-2 to apply in the circumstances of this case in the manner
that the Respondent urges, I reject the Respondent's reading which
would produce anomalous results. Thus, while the parties
contemplated in 1990 that additional employees subsequently would
be transferred into the newly-created DDRW beyond those identified
as having been transferred in June 1990, there is no basis to
conclude that the parties contemplated transfers occurring more
than 18 months later. That is, when the parties agreed that
supplemental agreements covering transferred employees would remain
in effect for 18 months unless earlier superseded by a supplemental
agreement between them, it is more likely that they intended such
provision to apply to those employees already transferred into DDRW
in 1990. To read that provision more broadly as applicable to the
employees involved in this case--who were not even transferred from
the Marine Corps to the newly-created Respondent Defense
Distribution Depot Barstow (organiza-tionally part of DDRW) until
March 1992--would produce the absurd result that the LSA became
inoperative as to those employees in December 1991,i.e., four months before
their transfer to the Respondent. In the absence of compelling
evidence to support such a reading, I reject it.1243659051 Accordingly, I conclude that the LSA was in effect and
governed the rights and obligations of the parties when the
Respondent unilaterally changed unit employees' conditions of
employment by removing them from the 5/4/9 Plan effective June 1,
1992.

B.Article
41, Section 8 of the LSA Required the Respondent to Negotiate over
the Decision to Terminate Alternative Work Schedules for Unit
Employees

I now turn to the issue which the
parties have agreed will resolve the underlying dispute in this
case: whether the LSA, as properly interpreted and applied,
authorized the Respondent to terminate the 5/4/9 Plan for unit
employees unilaterally. The LSA is of critical importance because
it is well settled that an agency's right to establish or terminate
an alternate work schedule is subject to the duty to bargain both
as to the substance and the impact and implementation of the
decision. Defense Logistics Agency,
Defense Industrial Plant Equipment Center, Memphis,
Tennessee, 44 FLRA 599, 600 and n.1
(1992);U.S. Environmental Protection
Agency, Research Triangle Park, North Carolina and American
Federation of Government Employees, Local 3347, 43 FLRA 87, 92 (1991);American
Federation of Government Employees Local 1934 and Department of the
Air Force, 3415 ABG, Lowery AFB, Colorado,
23 FLRA 872, 873-74 (1986). Accordingly, unless the LSA authorized
the Respondent to terminate AWS for all of the unit employees, its
admitted unilateral action in this regard constituted a clear
violation of section 7116(a)(1) and (5) of the Statute.

[W]hen a respondent claims as a
defense to an alleged unfair labor practice that a specific
provision of the parties' collective bargaining agreement permitted
its actions alleged to constitute an unfair labor practice, the
Authority, including its administrative law judges, will determine
the meaning of the parties' collective bargaining agreement and
will resolve the unfair labor practice complaint
accordingly.

Id.at
1103.285990697
Since the Respondent raises the provisions of the LSA as a defense
to the General Counsel's allegation that the unilateral termination
of AWS for unit employees constituted an unlawful refusal to
bargain under the Statute, I am required to interpret the LSA in
order to decide whether the Respondent's defense is well
founded.

The record indicates that the LSA
between the Union and MCLBB which became effective in January 1991
was the result of two months of hard bargaining in which the Union
initially proposed a work week of four 10-hour days with every
Friday off. Respondent counter-proposed a 5/4/9 Plan "at the
Division Director's discretion." The parties eventually agreed
upon the 5/4/9 Plan, with each Division Director having the
discretion to decide which employees in that Division would be
covered and which ones would be excluded (Article 41, Section 1).
For those employees or shops that were excluded from the AWS Plan,
the parties agreed that a request for reconsideration could be
submitted to the appropriate Division Director through the
grievance procedures in the MLA (Article 41, Section 4). Finally,
with respect to the termination of the AWS Plan after
implementation, management proposed that "if during the life of
this LSA, the alternate work schedule is determined to adversely
affect finances or impair mission accomplishment, the base will
effect a change."1771750689 The Union proposed a separate Section which provided that the
MCLBB would notify the Union "in accordance with Article 4, Section
1 of the MLA" of any intent to effect a change if the alternate
work schedule was "determined to adversely affect finances or
impair mission accomplishments." The Union's proposal eventually
was adopted by the parties as Article 41, Section 8 of the LSA. As
previously quoted, the precise language agreed upon was as
follows:

Section 8.
If during the life of this LSA, the alternate compressed work
schedule is determined to adversely affect finances or impair
mission accomplishments, the base will notify the union in advance
of their intent to effect a change in accordance with Article 41,
Section 1 of the MLA.

Thus, it is clear--and undisputed by
the parties--that Article 41, Section 8 of the LSA would apply to
situations where a Division Director had exercised his or her
discretion to include all or certain employees in that Division
under the AWS Plan, and where management subsequently determined
that a change was necessary for one of the reasons stated in
Section 8. Under these circumstances, the parties further agree,
the base (i.e.,
MCLBB) was required to notify the Union, in advance, of its
intention to effect a change in the AWS Plan. The disagreement
arises with respect to whether the Union was merely entitled to
advance notice (as claimed by the Respondent) or whether it also
had the right to negotiate over the proposed change in the existing
AWS Plan (as claimed by the General Counsel and the Union). For
the reasons stated below, I conclude that the Respondent was
obligated by the terms of Article 41, Section 8 of the LSA to
bargain as to the decision to terminate the AWS Plan for its unit
employees.

The starting point in my analysis is
the language of Article 41, Section 8 of the LSA. The key phrase
in that provision is "in accordance with Article 4, Section 1 of
the MLA." Thus, if the Respondent's only obligation under Article
41, Section 8 of the LSA were to notify the Union in advance
concerning an intended change in the AWS Plan, there would have
been no need to refer to Article 4, Section 1 of the MLA at all.
The latter phrase would have been superfluous. In my view, the
only reason why the parties to the LSA would have referred to
Article 4, Section 1 of the MLA is because that provision
specifically requires notice to the Union when management has
decided to change policies "that give rise to a bargaining
obligation under the Statute." The removal of unit employees from
the AWS Plan after they had been included through the exercise of
management's discretion would constitute a change in policy giving
rise to a statutory bargaining obligation. The incorporation of
Article 4, Section 1 of the MLA into the language of Article 41,
Section 8 of the LSA therefore compels the conclusion that notice
to the Unionandan
opportunity to bargain were required when the Respondent decided to
change the unit employees' conditions of employment by removing
them from coverage under the AWS Plan.

The other provisions of the LSA
support the foregoing interpretation. Thus, the parties to the LSA
separately provided that the Division Directors had the discretion
to choose which employees would be included in the AWS Plan and
that those employees who were excluded had the right to challenge
the exercise of the Division Director's discretion through the
negotiated grievance procedures of the MLA. This suggests that the
parties intended to treat in a different manner those employees who
were included under the AWS Plan through their Division Directors'
exercise of discretion but subsequently were chosen by management
for exclusion. The fact that the parties did not provide for any
means of challenging theremovalof employees from the AWS Plan1664876145--a far more disruptive decision than excluding them from the
AWS Plan at the start269363191--suggests that the parties contemplated bargaining before
such a decision could be implemented.

Finally, in agreement with the
arbitrator who previously interpreted and applied these provisions
of the LSA in similar circumstances, I find it "simply not
reasonable [to conclude] that the Union--which bargained hard for
the alternate work schedule plan and proposed the language in
Section 8 requiring bargaining--would have agreed to such a
proposal." Stated differently, I conclude that the Union would not
have proposed and fought for the language in Section 8 if it simply
required management to notify the Union before unilaterally
removing employees from the AWS Plan. Indeed, there is nothing in
the record to suggest that the Union intended its proposal to have
such a limited effect.2137704700

Accordingly, I conclude that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
unilaterally removing unit employees from the AWS Plan, thereby
changing their conditions of employment,367881598because Article 41, Section 8 of the LSA which was applicable
to those employees did not authorize the Respondent to take such
action unilaterally.73126971

C. The
Appropriate Remedy

The General Counsel has requested
astatusquoanteremedy in the
circumstances of this case, inasmuch as the Respondent's unlawful
unilateral change in conditions of employment involved a matter
which was substantively negotiable and the Respondent has not
established the existence of special circumstances which would make
such a remedy inappropriate. Respondent has not taken a position
with respect to the question of an appropriate remedy.

I conclude, in agreement with the
General Counsel, that astatusquoanteremedy is appropriate in this
case. Thus, as previously found, the Respondent admittedly
terminated the established AWS Plan for all unit employees without
bargaining over its decision to do so. Although the Respondent
testified at the hearing that it took such action essentially
because the decreasing employee complement was making it more
difficult to meet established time frames for completing various
work assignments while unit employees remained on the AWS Plan,
there was no contention that special circumstances existed which
would render astatusquoanteremedy
inappropriate--such as aninabilityto accomplish the Respondent's mission.
Accordingly, I shall recommend that the Authority adopt the
following remedial order, which has been imposed under similar
circumstances in other cases. SeeDefense
Logistics Agency, Defense Industrial Plant Equipment Center,
Memphis, Tennessee, 44 FLRA at 600-01,
618-20;U.S. Department of the Air Force,
416 CSG, Griffiss Air Force Base, Rome, New York, 38 FLRA 1136, 1150-51 (1990).750541959

ORDER

Pursuant to section 2423.29 of the
Federal Labor Relations Authority's Rules and Regulations and
section 7118 of the Statute, it is hereby ordered that the Defense
Distribution Region West, Defense Distribution Depot Barstow,
Barstow, California, shall:

1. Cease and desist
from:

(a) Unilaterally terminating the
alternate work schedule (AWS) Plan for unit employees located at
Barstow, California, without affording the American Federation of
Government Employees, Local 1482, AFL-CIO, the authorized agent of
the employees' exclusive representative, the opportunity to
negotiate with respect to any proposed changes.

(b) In any like or related
manner interfering with, restraining, or coercing its employees in
the exercise of rights assured them by the Federal Service
Labor-Management Relations Statute.

2. Take the following affirmative
action in order to effectuate the purposes and policies of the
Federal Service Labor-Management Relations Statute:

(a) Upon request, reestablish
the AWS Plan that was in effect for unit employees located at
Barstow, California, prior to its unilateral termination on or
about June 1, 1992, and afford the authorized agent of the
employees' exclusive representative the opportunity to negotiate
with respect to any proposed changes.

(b) Post at its facilities in
Barstow, California, copies of the attached Notice on forms to be
furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Director of the Defense
Distribution Depot Barstow and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including
all bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that
such Notices are not altered, defaced, or covered by any other
material.

(c) Pursuant to section 2423.30
of the Authority's Rules and Regulations, notify the Regional
Director, San Francisco Region, Federal Labor Relations Authority,
in writing, within 30 days of the date of this Order, as to what
steps have been taken to comply.

Issued, Washington, D.C., April 28,
1995.

______________________________

ELI NASH, Jr.

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR
RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF
THE

FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE

WE HEREBY NOTIFY OUR EMPLOYEES
THAT:

WE WILL NOT unilaterally terminate
the alternate work schedule (AWS) Plan for unit employees located
at Barstow, California, without affording the American Federation
of Government Employees, Local 1482, AFL-CIO, the authorized agent
of our employees' exclusive representative, the opportunity to
negotiate with respect to any proposed changes.

WE WILL NOT in any like or related
manner interfere with, restrain, or coerce our employees in the
exercise of rights assured them by the Federal Service
Labor-Management Relations Statute.

WE WILL, upon request, reestablish
the AWS Plan that was in effect for unit employees located at
Barstow, California, prior to our unilateral termination of the
Plan on or about June 1, 1992, and afford the authorized agent of
our employees' exclusive representative the opportunity to
negotiate with respect to any proposed changes.

(Activity)

Date:
By:

(Signature)
(Title)

This Notice must remain posted for
60 consecutive days from the date of posting and must not be
altered, defaced or covered by any other material.

If employees have any questions
concerning this Notice or compliance with its provisions, they may
communicate directly with the Regional Director, San Francisco
Region, Federal Labor Relations Authority, whose address is: 901
Market Street, Suite 220, San Francisco, California 94103-1791, and
whose telephone number is: (415) 744-4000.

CERTIFICATE OF SERVICE

I hereby certify that copies of this
DECISION issued

by ELI NASH, JR., Administrative Law
Judge, in Case Nos. SA-CA-20491 and SA-CA-20522, were sent to the
following parties in the manner indicated:

Organizationally, the Respondent
became part of the DLA's Defense Distribution Region West (DDRW),
headquartered in Stockton, California, which was formed on June 24,
1990 from components of the Army, Navy, Air Force and DLA. On that
occasion, a Memorandum of Understanding (90-2) was executed which
specified that all present and future bargaining unit employees
represented by AFGE locals and incorporated into DDRW would be
subject to the terms of the Master Agreement between DLA and AFGE
(Joint Ex. 1), and that all other agreements applicable to these
employees prior to their move to DLA would become supplements to
the Master Agreement after the realignment and remain in effect
until either a new supplement was agreed to by the parties, or for
18 months, whichever came first. The Memorandum of Understanding
further provided that if no agreement were reached at the end of 18
months from the signing of the MOU (August 6, 1990), the parties
would be considered at impasse.

The employees transferred from MCLBB
to DLA were warehouse personnel, and continued to perform the same
functions in the same locations except that before the transfer
they were exclusively responsible for distributing materiel to, and
working on equipment for, components of the Marine Corps, whereas
after the transfer they performed the same functions for the other
military services as well.

Esther Gonzales, MCLBB's chief
negotiator of the LSA, also testified in this proceeding.
Specifically, she testified that Article 41, Section 8 of the LSA
was intended to allow management to cancel the 5/4/9 Plan for the
entire Base simply by notifying the Union in advance. She further
testified that if AWS were cancelled only for certain divisions but
not Base-wide, the Union would not be entitled to any notice. In
either event, she testified, the Union was not entitled to
negotiate over management's decision to cancel AWS. As noted
above, the arbitrator rejected this interpretation of the
LSA.

The General Counsel contends that
the arbitrator's award interpreting the LSA has become part of the
agreement itself and is binding on the parties in this case.
Conversely, the Respondent asserts that it was not a party to the
arbitration between the Union and MCLBB, that the facts and
circumstances in this case are far different from those before the
arbitrator, and that the award in that case is irrelevant here. In
my judgment, the arbitrator's award is neither binding nor
irrelevant in this case. It is not binding because the Respondent
was not a party to that earlier proceeding and cannot be precluded
from litigating issues which may have been decided between those
parties. Moreover, inasmuch as another arbitrator would not be
bound by this arbitrator's award even if the parties and the issues
were the same,seeU.S. Department of Transportation, Federal
Aviation Administration, Southern Region, Atlanta, Georgia and
National Air Traffic Controllers Association, 47 FLRA 658, 663 (1993), and cases cited, such award cannot
be considered binding in this unfair labor practice proceeding.
Indeed, as the Authority has stated, Administrative Law Judges are
empowered and required to interpret provisions in collective
bargaining agreements where necessary to resolve alleged unfair
labor practices. Internal Revenue Service,
Washington, D.C., 47 FLRA 1091, 1103
(1993). On the other hand, the arbitra-tor's award involves an
interpretation of the same contract provisions that are at issue
here and thus cannot be considered irrelevant. Accordingly, while
there is no need to defer to the arbitrator's interpretations,
there is no need to disregard such interpretations to the extent
they are persuasive.

The record indicates that DDRW and
the DLA Council of AFGE Locals negotiated concerning a number of
subjects, including AWS, and that management declared an impasse
concerning AWS on February 9, 1994. I take official notice that a
request for assistance thereafter was filed with the Federal
Service Impasses Panel (Case No. 94 FSIP 156) on several issues,
including AWS, and that the parties thereafter were able to resolve
their differences over AWS without the need for a formal Panel
decision and order on that issue. SeeDepartment
of Defense, Defense Logistics Agency, Defense Distribution Region
West, Stockton, California and AFGE Locals of Defense Distribution
Region West, AFL-CIO, Case No. 94 FSIP 156
(Feb. 23, 1995).

Memorandum of Understanding 90-2
provides, in pertinent part, as follows:

a. Effective 24 June 1990, all
AFGE . . . bargaining unit employees formerly of the Depart-ments
of the Army, Navy and Air Force . . . and of the Defense Depot
Tracy California will move into the newly created Defense
Distribution Region West (DDRW), and will be subject to the terms
and conditions of the Master Agreement between DLA and the DLA
Council of AFGE Locals (otherwise referred to as the Master
Agreement).

b. . . . All other agreements
applicable to these employees prior to the move to DLA will become
supplements to the Master Agreement after the realignment. As
supplements, they remain applicable only to the extent that they do
not conflict with the Master Agreement. These agreements . . .
remain in effect until the new supplement is agreed to by the
parties, or 18 months, whichever comes first. So long as it is
understood that if an agreement has not been reached at the end of
the 18 months from the signing of this Memorandum of Understanding
(MOU), the parties will be considered at impasse.

This is exactly what occurred with
respect to the testimony of Esther Gonzales which the Respondent
offered concerning the purported meaning of certain provisions of
the LSA which both parties agreed were pivotal to the disposition
of this case.

Similarly, I reject the Respondent's
contention that the complaint should be dismissed because the Union
was not the proper party to request negotiations over the
Respondent's decision to terminate AWS for the unit employees in
question. Thus, the Respondent never rejected the Union's demand
to negotiate on the basis that the Union lacked authority to
bargain. Rather, the Respondent refused to negotiate purportedly
because the LSA empowered it to act unilaterally. Moreover, when
the Respondent decided to terminate AWS for its unit employees,
notice was sent to the Union as the authorized agent of AFGE for
the purpose of representing the Respondent's employees--the Union's
status in this regard having been admitted in the Respondent's
answer to the complaint herein. Finally, Article 20, Section 1 of
the Master Agreement between DLA and AFGE states that "the
establishment of work schedules and the administration of this
Article [which specifically includes alternative work schedules]
are matters for negotiation at the PLFA [primary level field
activity] level." Inasmuch as the Respondent is a PLFA, and the
Union is the agent of AFGE for representing the Respondent's
employees, there is no basis for concluding that the Union lacked
authority to request bargaining over the decision to discontinue
AWS for the Respondent's unit employees.

In adopting this approach, the
Authority noted that it not only had the power under section
7105(a)(2)(G) and (I) of the Statute to resolve unfair labor
practice complaints and to take such other actions as are necessary
and appropriate to effectively administer the Statute, but that its
right to interpret collective bargaining agreements when necessary
to resolve an unfair labor practice claim is consistent with the
NLRB's recognized authority to do so in the private sector,
citingNLRB v. C & C Plywood
Corp., 385 U.S. 421 (1967) andLocal Union 1395, IBEW v. NLRB, 797 F.2d 1027, 1030 (D.C. Cir. 1986). Id.at 1104-05.

As I interpret Article 41, Section 4
of the LSA, it applies only where an employee or a shop has been
excluded from the AWS Plan by virtue of a Division Director's
discretion, and wishes to seek reconsideration of that
discretionary determination. It does not apply where a Division
Director exercises discretion to include employees in the AWS Plan
but management later decides that such employees should be removed
from the Plan.

Obviously, employees who are chosen
to participate in the AWS Plan thereafter form carpool, day care
and other arrange-ments based upon their revised work schedules
which may be far more difficult to undo and therefore would be far
more disruptive to them than if they had never been included at the
outset and thus never had the need to make such new
arrangements.

While Esther Gonzales, management's
chief negotiator of the LSA, testified as to what MCLBB intended
Article 41, Section 8 of the LSA to mean (see n.3), she never
disputed thatthe Unionintended its proposal to require substantive bargaining over
any management decision to remove unit employees from the AWS Plan.
Moreover, I discount Gonzales' testimony concerning the LSA's
meaning because her testimony has been contradictory and
inconsistent. Thus, before the arbitrator, she testified that the
Union would have been entitled to notice and an opportunity to
bargain if management had decided to eliminate the AWS Plan
Base-wide rather than in one branch of a division. In this case,
however, whichdidinvolve a determination to eliminate the AWS Plan altogether,
Gonzales testified that the Respondent was merely obligated to
notify the Union of its decision but had no duty to bargain. These
inconsistent interpretations appear to be result-oriented, and
therefore are entitled to little weight. In any event, as
previously stated, and in agreement with the arbitrator, I find
that the Union's interpretation of Article 41, Section 8 of the LSA
is more reasonable and I adopt it.

I reject the Respondent's assertion
that the unfair labor practice forum is inappropriate in this case
because the parties provided in Article 41, Section 4 of the LSA
that Division Directors' decisions concerning the exclusion of
employees from the AWS Plan would be subject to challenge through
the negotiated grievance procedure. In the first place, I have
concluded that Article 41, Section 4 of the LSA was intended to
provide a forum to challenge a Division Director's exercise of
discretion to exclude unit employees from the AWS Plan, not to
cover subsequent decisions toreversethe original discretionary
determination to include them. In any event, even if Article 41,
Section 4 of the LSA extends to the latter situation, the Authority
has previously held that an aggrieved person is not limited to the
negotiated grievance procedure but may choose to pursue the matter
in an unfair labor practice proceeding by virtue of the discretion
afforded under section 7116(d) of the Statute. See,e.g.,Internal
Revenue Service, Washington, D.C., 47 FLRA
at 1106.

I want to emphasize that, in
reaching this conclusion, I am not rejecting the Respondent's
reasons for deciding to eliminate AWS for all of its employees.
Indeed, the Respondent's declining work force may have made it far
more difficult to accomplish mission requirements while the
employees remained on a 5/4/9 Plan. However, this is not the
question before me. The only issue here is whether the Respondent
improperly refused to bargain over the decision to eliminate AWS
before implementing that decision. I note that the parties
subsequently did bargain over this issue in 1993 and reached an
impasse which was referred to the Federal Service Impasses Panel.
If that process had occurred in 1992, this entire proceeding would
have been unnecessary.

I deny the General Counsel's request
for an extraordinary remedy which would require the Respondent not
only to reinstate the AWS Plan for all unit employees but to
maintain that Plan for the same length of time that the employees
had been unlawfully deprived of the Plan--i.e., from June 1, 1992 until the date
of the Authority's order herein. The General Counsel cites a
case,Marine Corps Logistics Base, Barstow,
California, 44 FLRA 782, 800-01 (1992), in
which a similar "time credit" was granted. In that case, however,
the agency simply raised the price of a soft drink in its vending
machines by five cents per can, so the Authority ordered a
rescission of the price increase and a further decrease of five
cents per can for the same number of days that the unilateral
increase in price had been in effect. The circumstances in this
case are far different. Ordering a similar "time credit" here
would require the Respondent to maintain the AWS Plan even if
further staffing decreases made it impossible for the Respondent to
accomplish its mission. There was no similar risk in requiring the
Marine Corps to reduce the price of its soft drinks by an
additional five cents, even for a substantial period of time.
Moreover, I note that the parties belatedly negotiated over the AWS
Plan from mid-1993 until the Respondent declared a bargaining
impasse in February 1994, thereafter referred the dispute to the
Federal Service Impasses Panel, and apparently resolved the matter
voluntarily during the pendency of this proceeding.